INSCT Director William C. Banks—an expert in national security and counterterrorism law and policy—has joined distinguished colleagues from across the US to draft two briefs of amicus curiae on behalf of the Electronic Privacy Information Center (EPIC), a petitioner to the US Supreme Court.

On July 8, news agency Reuters announced that EPIC “is taking the unusual step of asking the US Supreme Court to review a [Foreign Intelligence Surveillance Court (FISC)] ruling … that authorized government access to millions of Verizon Communications, Inc. phone call records.” EPIC’s petition for a writ of mandamus and/or prohibition against the intelligence court-authorized “sweeping surveillance” of Verizon phone records by the US National Security Agency (NSA) was filed with the Supreme Court on July 11, 2013.

According to Reuters, “EPIC is challenging the intelligence court’s authority to authorize such a wide-ranging data-gathering operation. The government sought the records under Section 215 of the 2001 USA Patriot Act, which allows for access to ‘any tangible things’ as part of any authorized investigation related to terrorism or intelligence activities … The EPIC court filing is a long shot as the group is not following the traditional route for appealing a lower court decision.”

Amicus Curiae Brief of Former Members of the Church Committee and Law Professors in Support of Petitioners

This brief—lead-authored by Professor Laura Donohue of Georgetown Law—presents the question “Did the Foreign Intelligence Surveillance Court exceed its authority to authorize foreign intelligence surveillance under 50 U.S.C. §1861, when it directed Verizon Business Network Services to provide, on an ongoing basis, all call detail records of communications wholly within the United States to the National Security Agency?”

This brief’s amici are former members of the 1975-1976 Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (aka, the “Church Committee”) and law professors who teach and write about legal history, constitutional law, national security law, internet law, and privacy law. Among those joining Banks and Donahue are former US Senator Gary Hart; former Vice President Walter Mondale; Professor Fred H. Cate of the Indiana University Maurer School of Law; Professor Erwin Chemerinsky of the University of California-Irvine School of Law; and Professor A. Michael Froomkin of the University of Miami School of Law.

In its Summary of Argument, the brief states that “Congress circumscribed the NSA’s authorities by limiting them to foreign intelligence operations. It added additional constraints, requiring that the target be a foreign power or an agent thereof, insisting that such claims be supported by probable cause—which itself could not be established solely on the basis of otherwise protected first amendment activity, and heightening the protections afforded to US citizens’ information.

“The government’s argument rests on the claim that all telephone calls in the United States, including those of a wholly local nature, are ‘relevant’ to foreign intelligence investigations. This contradicts the purpose of the statute, which is to limit the conditions under which US persons’ information can be collected, analyzed, and distributed. The FISC plays a key role in carefully considering the surveillance to be undertaken with regard to each target. Reading 50 U.S.C. §1861 as authorizing the wholesale collection of all telephony data delegates targeting decisions to the executive branch, further rendering FISA’s restrictions meaningless.”

Brief of Amicus Curiae, Professors of Information Privacy and Surveillance Law

This brief—lead-authored by Professor Fred H. Cate of the Indiana University Maurer School of Law—summarizes its argument by observing that, “The Verizon Order [made by the NSA] warrants the extraordinary remedy of mandamus because it clearly violates the law and presents an extraordinary risk to personal privacy of millions of US persons. Such sweeping collection of data about individuals who ‘have done nothing to warrant government suspicion … has the potential to be a 21st-century equivalent of general searches.’ TAPAC Final Report at 49. The plain language of §215 [of the USA Patriot Act of 2001, revised 2006] makes clear that Congress denied this virtually unlimited authority to the government, and denied the [FISC] the power to authorize it.”

The brief’s amici are distinguished professors with broad experience in the history, application, and impact of information privacy and surveillance law and the legal provision on which the challenged Verizon Order is based. Joining Banks and Cate are Professor Danielle Citron of the University of Maryland Francis King Carey School of Law; Professor Lawrence M. Friedman of New England Law—Boston; Professor Ken Gormley of the Duquesne University School of Law; Professor Deirdre Mulligan of the University of California-Berkeley; Professor Joel Reidenberg of the Fordham University School of Law; Professor Peter Swire of the Ohio State University Moritz College of Law; and Professor Jennifer M. Urban of the University of California-Berkeley School of Law.

[…] And he does have a history of being critical of civil liberties overreach. He’s signed on to two amicus briefs asking the Supreme Court to review rulings of the Foreign Intelligence Surveillance Court revealed […]